Mwangi v Macharia & another (Civil Application E100 of 2024) [2025] KECA 1005 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land judgment because the applicant showed no arguable grounds of appeal and no risk the appeal would become pointless.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant demonstrated an arguable appeal
- 2.Whether the appeal will be rendered nugatory if stay of execution is not granted
Key legal issues
#Arguability of the intended appeal
The applicant did not annex a draft memorandum of appeal and her supporting affidavit did not set out even one ground of appeal; the Court could not discern any arguable ground.
The Court reiterated that a single arguable point suffices and need not be one that would succeed, citing Yellow Horse Inns Ltd and Kenya Commercial Bank v Ombija. However, the applicant failed to annex a memorandum of appeal, and the supporting affidavit listed no possible grounds. Without grounds to weigh against the impugned judgment, the Court could not assess arguability and found none discernible.
Whether the appeal would be rendered nugatory absent a stay
The applicant did not demonstrate any imminent danger of alienation of the property by the respondents, nor that she could not be compensated in damages.
The respondents denied any intention to alienate or interfere with the suit property. The applicant adduced no evidence of threatened disposal, and her claimed losses were monetary and compensable. Having failed on both limbs of the Rule 5(2)(b) twin test, the application had to be dismissed.
Legal principles established
#- To succeed under Rule 5(2)(b), an applicant must demonstrate both an arguable appeal and that the appeal will be rendered nugatory absent a stay.
- An applicant need not show multiple arguable points; one suffices, and the arguable point need not be one that would succeed.
- A stay applicant should annex a draft memorandum of appeal or otherwise set out the arguable grounds in the supporting affidavit.
Court orders
#- 1.The application for stay of execution pending appeal is dismissed
- 2.The costs of the application will abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (trial court) / Environment and Land Court not specified
- Not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the trial court judgment
Applicant failed to demonstrate the twin principles of an arguable appeal and nugatory appeal
Restraint order against the Land Registrar Murang'a from making entries affecting the suit property
Follows from failure to satisfy the Rule 5(2)(b) threshold
Costs
The costs of the application will abide by the outcome of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
To succeed in an application under Rule 5 (2)(b) of the Court of Appeal Rules, an applicant has to satisfy the twin principles that are enumerated in many decisions of this Court, namely: i. An applicant must demonstrate that they have an arguable appeal; and ii. That the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree or order of proceedings is not stayed.
This anomaly could have been cured if the afidavit supporting the application had listed the possible grounds of appeal. A close look at the afidavit does not enlist even one ground. Therefore, we are unable to discern any arguable ground from the material placed before us.
The applicant has failed to demonstrate the twin principles necessary. As such, the fate of her application is sealed. It must be dismissed. The costs of the application will abide by the outcome of the appeal.
Issues in the judgment
#The judgment is a certified copy and its text does not state the appeal's case number, the parties' full names, or the neutral citation, limiting identification of the matter.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v Macharia & another (Civil Application E100 of 2024) [2025] KECA 1005 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1005/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.